Same-sex marriage: Virginia AG's office pushes for delay of ruling

Virginia Attorney General Mark Herring's office on Tuesday said a recent court decision overturning the state's same-sex marriage ban should be put on hold as the case is appealed to the nation's highest court.

Herring's request for a delay, or a "stay" in legal parlance, puts him at odds with two same-sex couples whose cause he has championed in court for months. They want immediate enforcement of a judge's ruling that the state can't ban same-sex marriage.

"It is with great reluctance that the Attorney General agrees that a stay is warranted," Herring's solicitor general, Stuart A. Raphael, wrote in the filing. The filing reinforces what Herring has said previously but expands on some of the reasons he supports the stay.

But, Raphael said, the U.S. Supreme Court "has twice issued stays of injunctions" in cases very similar to Virginia's.

Second, he wrote, if the Supreme Court says Virginia's same-sex marriage ban is constitutional, "unwinding marriages" that took place in the interim "would present wrenching and intractable problems."

He mentioned issues with adoptions, taxes, estate issues, wrongful death awards and re-marriage after divorce.

"The unintended consequences that will befall the Commonwealth and its people if the injunction takes effect prematurely … show the necessity of staying the mandate until the Supreme Court can conclusively resolve what may well be the most important civil rights issue of our time," Raphael wrote.

The plaintiffs in the case, Raphael said, "mistakenly assert" that the only risk of uncertainty is on the same-sex couples who decide to marry before a final ruling.

"That assertion overlooks the myriad difficulties that would be confronted by the Commonwealth, local governments, and private parties in Virginia if no stay is in place and the Supreme Court reverses this Court's decision," Raphael wrote.

The AG's office said it's also planning to ask on Friday that the U.S. Supreme Court review the case — essentially filing its own appeal of the decision it strongly supports. That will allow the high court to consider the matter at its September conference, Raphael wrote.

"Speed is warranted, for it is unjust for Virginia's same-sex couples to have to wait even a little while longer for the promise of the Fourteenth Amendment to be fulfilled," he wrote.

"As this Court observed, across the Commonwealth, more than 2,500 same-sex couples are raising more than 4,000 children. They are our fellow Virginians. And the Attorney General is committed to ensuring that the government stops treating them as second-class citizens."